Making the Constitution, Part V

Some final questions about the new government

Here is Part V of our series on
the drafting of the Constitution (click here for
Part I,
Part II,
Part III,
Part IV). After three months, the conflicts between large and
small states have been resolved. The conflict over slavery has been
put aside for another generation. The Philadelphia Convention begins
to decide the final questions about the new government. Some delegates
begin to wonder whether the new Constitution might be a cure worse
than the disease.

August 27: John Dickinson, the conservative Pennsylvania
lawyer, proposed that federal judges be removable by Congress. Not a
single state voted in favor of the idea. As a result, federal judges
can only be removed for criminal or other bad behavior.

The independence and life tenure of the federal judiciary is one of
the Constitution's most important safeguards of liberty. All the
articles in the Bill of Rights would mean nothing if there were no
federal judges ready to enforce them. Protecting individual rights is
often unpopular. Jehovah's Witnesses who won't salute the flag, Nazis
who want to march in Skokie, and civil rights workers in rural
Mississippi are all despised by the majority of local citizens. If
federal judges were subject to popular control, they would soon stop
protecting the rights of unpopular groups.

August 28: The Convention decided that the privilege of habeas corpus(a judicial writ to bring a prisoner before the
court) could only be suspended when "in Cases of Rebellion or Invasion
the Public Safety may require it."

At
the start of the Civil War, President Lincoln authorized his generals
to arrest people when they felt it proper. One General ordered a
Baltimore man named John Merryman arrested and held at Fort McHenry
(ironically, the site where Frances Scott Key had composed the "Star
Spangled Banner" when he was a British prisoner of war.) No one ever
told Mr. Merryman why he was being held at Fort McHenry, or if he
would ever be released.

Lincoln argued that he had the right to suspend habeas corpus whenever he felt like it. The Supreme Court disagreed: since the
clause about habeas corpus was in Article I of the
Constitution, which dealt with legislative powers, only the Congress
could suspend the right of habeas corpus. The Court ordered
Merryman released. Lincoln refused, and continued to hold Merryman a
prisoner.

August 29: The delegates unanimously agreed that fugitive
slaves who escaped to free states would be returned to their masters.

August 30: Upon the suggestion of Gouverneur Morris, the
Convention accepted technical changes in the clause regarding
admission of new states. The modifications would facilitate the
entrance of Vermont into the Union. Actually, Vermont had been
functioning as an independent state since 1777, but New York still had
claims on it. Finally, in 1791, after Vermont paid New York $30,000,
Vermont was admitted as the 14th state.

When should the new Constitution go into effect? After nine of the
thirteen states ratified, the delegates agreed. Under the Articles of
Confederation (the current system of government), it took the votes of
nine states in Congress to decide an important issue, so the number
seemed appropriate.

Some delegates thought the vote should be unanimous, since the
Articles of Confederation specified that all it would take all 13
states to dissolve the existing Confederation. Mr. Wilson of
Pennsylvania replied: "The House on fire must be extinguished without
a scrupulous regard to ordinary rights."

Had unanimity been required, the Constitution would not have been
adopted. Rhode Island bitterly opposed any change in the
Confederation, and only ratified the Constitution after everyone else
had, leaving Rhode Island a lonely and weak nation by itself. North
Carolina also held out until after the new constitutional government
had gone into operation.

September 6: The states agreed that the president should serve
a four year term, and rejected suggestions that the president serve a
six or seven year term. As Woodrow Wilson would later observe, six
years is too long for a bad president, and too short for a good one.

September 7: The vice president would preside over the Senate;
otherwise, "he would be without employment."

September 12: The Convention discussed putting in a guarantee
of a right to trial by jury. Virginia's Colonel Mason suggested that
an entire Bill of Rights should preface the Constitution. (In 1776,
Mason had drafted a Declaration of Rights that was widely admired.)

Rhode Island's Roger Sherman responded that the right to jury trial
was protected by state constitutions. But national laws, retorted
Mason, will override state constitutions.

The Convention overwhelmingly rejected the proposal to draft a Bill of
Rights. In part, the delegates were tired and wanted to end the
Convention soon. This was a serious mistake; opponents of the
Constitution would argue that a Constitution without a Bill of Rights
would lead to despotism. In Virginia, Colonel Mason and Patrick Henry
would lead the fight against ratification on precisely those grounds.

September 14: Pinckney of South Carolina and Gerry of
Massachusetts offered a clause: "that the liberty of the Press should
be inviolably observed." Sherman answered, "The power of Congress does
not extend to the Press." The Convention rejected the proposal.

September 15: Mr. Sherman of Rhode Island had some worries of
his own. Since three-fourths of the states could add amendments, what
if they passed an amendment to deprive small states of their equal
vote in the Senate? Under pressure from the small states, the
Convention agreed "no State, without its consent shall be deprived of
its equal suffrage in the Senate." Unlike all the other provisions of
the Constitution, this one can never be changed, even by amendment.

The Constitution was complete, but not everyone was satisfied with the
product. Elbridge Gerry found three defects especially serious:

1. The power of Congress "To make all Laws which shall be Necessary
and Proper" to execute its other powers was subject to abuse;

2. There were not enough limits on the power of Congress to raise
armies and money;

3. The right to trial by jury was not protected.

The Constitution came up for its final vote of approval. All the
states voted aye.

The delegates adjourned to the City Tavern for a celebration. The 55
gentlemen had dinner and a few drinks: 54 bottles of Madeira; 60 of
claret (a French red wine); 50 bottles of assorted beers, ales, and
ciders; and 7 large bowls of heavy-duty punch. The party got so rowdy
that the Tavern had to add a two-percent breakage fee to the tab!

September 17: Benjamin Franklin delivered one of the last great
speeches of his career. Fellow Pennsylvanian James Wilson read the
speech to the Convention, for Franklin was too weak to take the
rostrum. Franklin in his address explained that he too thought parts
of the Constitution imperfect; no convention, composed of imperfect
men, could compose an ideal document. He doubted a better Constitution
could be made, and promised to put his doubts behind him: "I have
never whispered a syllable of them abroad. Within these walls they
were born, and here they shall die." He asked each delegate to "doubt
a little of his own infallibility," put aside his objections, and
unanimously support the Constitution.

Gouverneur Morris agreed. The alternative to the new Constitution was
anarchy. Aristocratic Alexander Hamilton noted that "No man's ideas
were more remote from the plan than his," but the new Constitution was
still better than chaos.

The Convention voted to keep its Journals secret, so that enemies of
the Constitution could not make use of them.

All the delegates signed the Constitution, except for Elbridge Gerry,
Colonel George Mason, and Edmund Randolph. Each would lead forces in
their home state against ratification. Only after a difficult and
closely-fought struggle would nine states eventually ratify the
Constitution, for the opponents could point to serious defects,
including the omission of a Bill of Rights.

As
the last members were signing the Constitution, Benjamin Franklin
looked at the President's Chair, on the back of which a rising sun was
painted. He observed that painters found it difficult to distinguish a
rising sun from a setting sun. During the debates, Franklin had often
looked at the sun, and wondered whether it was rising or setting. "But
now at length I have the happiness to know that it is a rising and not
a setting sun."

The delegates left Constitution Hall. A citizen approached Franklin,
and asked him what kind of government had been created. "A republic,"
replied Franklin, "If you can keep it."

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